Union seeks rare court action against CP Rail to cap working hours

[December 20, 2019]  By Allison Lampert and Anna Mehler Paperny

MONTREAL/TORONTO (Reuters) - A Canadian union is taking the unusual step of pursuing contempt of court charges against Canada's second-largest railroad, in a previously unreported case that escalates the debate over working hours for railroad employees, according to two sources and legal documents.

The Teamsters union argued in court filings that Canadian Pacific Railway <CP.TO> should face contempt fines of C$50,000 ($37,591.16) a day for making its conductors and locomotive engineers stay late, despite an arbitrator's decision that ends duty after their shifts.

The case, which has been filed in Federal Court in Toronto, is expected to go to court in 2020, said sources who spoke on condition of anonymity because the dispute is still wading its way through the legal system. No date has been set.

In an emailed statement to Reuters, Calgary-based CP denied that it failed to comply with the arbitrator's 2018 order, adding it is "vigorously defending" its claim and believes the case should be resolved outside of court.

Workers' shifts and fatigue emerged as key issues in November during a crippling, eight-day strike at Canadian National Railway <CNR.TO>, which ended with an agreement-in-principle set to be finalized in late January.

The recording of an exhausted conductor facing pressure to move a freight train following his 10 hour shift helped spur a breakthrough in the negotiations. [nL1N2860EO][nL1N2860YL]

Canadian Transport Minister Marc Garneau is reviewing rail industry proposals submitted this week to introduce new work-rest rules for railway employees, as part of broader efforts by North American regulators to fight fatigue.

CP said in the emailed statement that the parties are currently "working to resolve a host of procedural issues" in the case.

Mixing arbitration and the courts is a departure from the normal practice of separating the two fields, following a 1995 Supreme Court of Canada decision on the matter, a human resources expert said.

"It would be very uncommon," said Rafael Gomez, Director of the Centre for Industrial Relations and Human Resources at the University of Toronto.

CP argued that federal court is the wrong forum to hear "complex operational issues" like the ones in the case.

The Canadian Pacific railyard is pictured in Port Coquitlam, British Columbia February 15, 2015 REUTERS/Ben Nelms

The TCRC and Canada's large railways have clashed for years over working hours in the 24-hour, mostly on-call industry serving far flung locations, where delays are common because of bad weather and congestion.

"These issues can and should be dealt with through the processes already provided for under the collective agreement between the parties," CP said.

The Teamsters Canada Rail Conference, which declined comment, argued in the June 2019 filing that CP left it no other choice but to go to court.

"The union has now been forced to seek this contempt motion because the violations continue to occur hundreds of times every month," said the TCRC, which represents thousands of Canadian rail workers.

The union said it identified 6,215 violations of workers' rest provisions between the publication of the arbitrator's order on March 23, 2018, and December 19, 2018.

CP's unionized locomotive engineers and conductors can book rest within 10 hours if they give proper notice, and can be off duty within 12 hours, barring extenuated circumstances outside the railway's control, such as bad weather.

Rail workers in Canada and the United States can work a maximum of 12 hours, according to regulations in each country.

While arbitrator Graham Clark did not side fully with the union or CP, his March 2018 decision issued a cease and desist order after "CP's own evidence indicated that thousands of situations continue to occur annually where employees are not off within 10 hours."

Most of the workers were kept less than an hour late.

"The health and safety of the union's members (and the public), maximum hours of work and their right to book rest if they are fatigued, is of paramount concern," the union said in the 2019 filing.

($1 = 1.3301 Canadian dollars)

(Reporting By Allison Lampert in Montreal and Anna Mehler-Paperny in Toronto; Additional reporting by Kelsey Johnson in Ottawa; editing by Edward Tobin)

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